Common law

Common law, also known as case law or precedent, is a body of law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action. A "common law system" is a legal system that gives great precedential weight to common law, on the principle that it is unfair to treat similar facts differently on different occasions.

In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.

Reason is the life of the law; nay, the common law itself is nothing else but reason... The law, which is perfection of reason.

Edward Coke, The First Part of the Institutes of the Laws of England, or, A Commentary on Littleton (London, 1628, ed. F. Hargrave and C. Butler, 19th ed., London, 1832), Third Institute. Compare: "Let us consider the reason of the case. For nothing is law that is not reason", Sir John Powell, Coggs vs. Bernard, 2 Ld. Raym. Rep. p. 911.

The Common lawes of the Realme should by no means be delayed for the law is the surest sanctuary, that a man should take, and the strongest fortresse to protect the weakest of all, lex et tutissima cassis.

Yet the whole structure of the common law is an obvious denial of this theory; it stands as a monument slowly raised, like a coral reef, from the minute accretions of past individuals, of whom each built upon the relics which his predecessors left, and in his turn left a foundation upon which his successors might work.

The common law is not a brooding omnipresence in the sky, but the articulate voice of some sovereign or quasi sovereign that can be identified; although some decisions with which I have disagreed seem to me to have forgotten the fact.

The life of the law has not been logic; it has been experience... The law embodies the story of a nation's development through many centuries, and it cannot be dealt with as if it contained only the axioms and corollaries of a book of mathematics.

The common law does not consist of particular cases decided upon particular facts: it consists of a number of principles, which are recognised as having existed during the whole time and course of the common law. The Judges cannot make new law by new decisions; they do not assume a power of that kind: they only endeavour to declare what the common law is and has been from the time when it first existed. But inasmuch as new circumstances, and new complications of fact, and even new facts, are constantly arising, the Judges are obliged to apply to them what they consider to have been the common law during the whole course of its existence, and therefore they seem to be laying down a new law, whereas they are merely applying old principles to a new state of facts.

There is no doubt whatever that as far as common law is concerned, the Courts in this country have been bound, most of them, by inflexible rules handed down in great measure from the time of the Plantagenets, and until certain modern statutes were passed there was no possibility of altering or improving them.

The common law, though not to be found in the written records of the realm, yet has been long well known. It is coeval with civilised society itself, and was formed from time to time by the wisdom of man. Good sense did not come with the Conquest, or at any other one time, but grew and increased from time to time with the wisdom of mankind.

The common law is the custom of the kingdom, and we are bound to know it, and must be all governed by it.

North, C.J., Whitebread's Case (1679), 8 How. St. Tr. 860.

The common law of England must direct the determination of a common law question. By common-law determinations we are bound; and to them we must always adhere: for, these are the proper constitutional declarations of the law of the land. They are so considered, even by the Court of Chancery itself. When any doubt arises in a cause of equity concerning a point of common law, it is usually referred to the determination of a Court of Common Law.

I here give my opinion as a Common Lawyer; not presuming to say what the Court of Chancery would do upon the same question.

Co. 2 Inst. 22, p. 2381.

I shall always as far as I can by law endeavour to support the common law of the land and that excellent method of trial by juries, upon which all our lives, liberties and properties depend; and I shall endeavour as far as I can to prevent the encroachment of any jurisdiction whatever that proceeds by another law and another method of trial.

In a perfectly new case—a case altogether primae impressionis—I think the Judges are bound to hold fast to the principles of the common law—to remember the maxim, "Salus reipublicae suprema lex," and if the condition be really in principle against the public good, to pronounce it in their judgment void.